Dahlia Lithwick on Celebrity Journalism and the Inability to Communicate Effectively About the Risks of Election Subversion

Spot-on Dahlia Lithwick, pivoting off the White House Correspondents dinner:

All of which leads us to the second category error. It’s not merely that the American free press is not quite as free as we’d prefer to believe, but also that American democracy itself is not nearly as free as Noah implied. And while Noah and his colleagues in the ballroom have quite creditably reported on that fact—on election suppression, and entrenched minority rule, and speech restraints, and the events of Jan. 6, 2021, and the continuing consequences of the lack of accountability for those things—the truth is that none of that news is terribly sticky or new or exciting as a story. In fact, the U.S. media pays stunningly little sustained attention to the possible looming death of freedom and democracy in the U.S. because it’s vastly easier to seek to entertain than to document abstract creeping illiberalism at home.

Consider just for example last week’s essay from Judge J. Michael Luttig, who offered an explicit warning about the ways in which the 2020 election was a dry run for stealing the 2024 election. The argument was shocking coming from an avowed lifelong Republican judge. It was, however, also fundamentally the same analysis professor Richard Hasen has been offering for more than a year, that pro-democracy organizations have been reporting on consistently with alarm, that academics have been on fire over for years, and that has been the subject of innumerable open letters as scholars have warned repeatedly about what’s been taking place at every level of voting rights. As the nation reemerges from more than two years of pandemic life with mounting inflation worries as the chief public concern, it’s really, really, really hard to get people to care about the same problem of authoritarian creep that has been going on for years and that is just always getting incrementally worse.

Yes, the media has done the big stories about what is happening on the ground to elections apparatuseselections officials, and democratic collapse. The Washington Post may have devoted great resources to the tick tock of Jan. 6, but you can only really write—and get readers to click on—so many pieces about the independent state legislature doctrine, even if we do try and try and try and try. The truth is that the ballroom gala on the decline of democracy would probably happen at an airport Holiday Inn somewhere in Muncie, Indiana, and at the conclusion—after all in attendance had nodded vigorously at the 30-minute keynote by some famous academic who has been warning of this every day for years, and no longer has any friends on the faculty—everyone would just go home and feel sad.

So while Noah’s fundamental critique is correct, and every working journalist in the world should do some soul-searching about what they are doing to protect freedom every day, the larger truth is that we have constructed a world of journalism in which most consumers don’t want to buy that news and most purveyors don’t really care to sell it. Faulting the press for systemic failures around what “the press” means, or actually does every day, is quite literally the definition of shooting the messenger. The U.S. media is not “free” both because there are increasing economic and ideological constraints on news-gathering and news publication, but it’s also not “free” because it depends on a system that has no meaningful or sustained interest in reporting on freedom. That is a much bigger problem than flighty reporters and their insufficient ethical or political seriousness. It is the problem of an entire machinery of news-gathering and news dissemination that lacks that necessary degree of ethical or political seriousness.

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Georgia: “Fulton prosecutors to begin jury selection for Trump probe”

AJC:

Jury selection is slated to begin early Monday in downtown Atlanta for a special investigative panel that will delve into the actions of former President Donald Trump and his allies as they sought to reverse Georgia’s 2020 election results.

Prosecutors from the Fulton County District Attorney’s office are set to choose 23 residents, along with three alternates, to serve on a so-called special purpose grand jury.

The group will provide some much-needed investigative firepower to prosecutors, who have reached out to some 30 witnesses who have declined to testify voluntarily over the course of their 15-month-long criminal probe. That includes star witness Brad Raffensperger, the Republican secretary of state whom Trump called in January 2021 and pressured to reverse Joe Biden’s win in Georgia.

The special grand jury can issue subpoenas for documents and testimony but can’t approve indictments. Fulton District Attorney Fani Willis would ultimately need to present a case in front of a separate regular grand jury to do the latter.

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Kang, Dawood, Issacharoff Essays Posted from Stanford Law Review Symposium, With More to Come

SYMPOSIUM – 2022 – SAFEGUARDING THE FUNDAMENTAL RIGHT TO VOTE

The Post-Trump Rightward Lurch in Election Law

by  Michael Kang  on  April 29, 2022

The United States Supreme Court’s decisions last Term, Brnovich v. Democratic National Committee and Americans for Prosperity v. Bonta, mark only the beginning of a conservative transformation of election law under the Court’s post-Trump personnel. This Essay argues that although neither decision itself is immediately transformative, both decisions boldly discard ideological compromises not long ago held as obviously sensible by the right and instead point toward a conservative deregulation of minority voting rights and campaign finance disclosure in the near future.

Volume 74 (2021-2022)

The Right to Vote

Baselines and Defaults
by  Yasmin Dawood  on  April 29, 2022

An election undoubtedly requires some rules to ensure that it is ‘free and fair,’ but at what point do these rules diminish the equal opportunity of minority voters to cast a ballot? This Essay addresses these questions by examining the baselines that undergird the right to vote. The author identifies three kinds of baselines—legal, contextual, and normative—and explores the implications of each for voting rights protection.

Volume 74 (2021-2022)

Weaponizing the Electoral System

by  Samuel Issacharoff  on  April 15, 2022

This Essay will examine the fragility of election structures that depend on bipartisan agreement to certain ground rules. I argue that democracies depend on two critical features: (1) a commitment to repeat play; and (2) institutional guardrails such that the majority (or even plurality) will win according to preset rules, but not win too much. The populist fervor of the times threatens both. This Essay explores how close to the abyss the election system came in 2020, and how delicate the balance remains going forward.

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“One GOP hopeful for Idaho Secretary of State says she wouldn’t work to increase voter turnout”

Idaho Press:

While both Moon and McGrane said voter education and encouraging Idahoans to vote would be high priorities should they be elected, Souza said, “I have a different look at that. I do not think that it is the secretary of state’s or even the county clerk’s role to increase turnout for any one party or even turnout in general. That is the role of the partisan groups, the special interest groups, people who are very supportive of a candidate or a ballot measure. That’s what they are supposed to be doing.”

“What the role of the secretary is, is to make sure the election laws are enforced and they are clear, and they are understood by all the citizens,” Souza said, “and let the special interest groups bring out their voters.”

Increasing turnout has long been a major push for past Idaho secretaries of state, which has resulted in everything from billboards to public service announcements, online videos, and outreach to Idaho schools.

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“Judge rejects RNC bid to block email, fundraising data from Jan. 6 panel”

WaPo:

A federal judge late Sunday rejected the Republican National Committee’s bid to block its mass email marketing vendor from releasing records to the House panel investigating the Jan. 6, 2021, Capitol attack as it probes whether President Donald Trump’s campaign spread false claims of fraud after the 2020 election through fundraising appeals that also stoked violence.

U.S. District Judge Timothy J. Kelly of Washington delivered a thorough victory to the House select committee, tossing out the RNC’s claims that its and the Trump campaign’s information was protected on grounds including the First Amendment and ruling that under the Constitution’s grant of legislative powers to Congress and the speech-or-debate clause, judges cannot interfere with how lawmakers obtain and use information.

Kelly also dismissed the RNC’s claims against Salesforce — the business software giant used by the RNC and Trump’s reelection campaign — after the company and committee significantly narrowed the list of disputed records at issue, for example, dropping demands for any information that would reveal the identities of individual political donors. Kelly temporarily barred Salesforce from releasing any records to the House before Wednesday to give the national GOP committee time to appeal.

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“The Effect of Television Advertising in United States Elections”

New in APSR from Sides, Vavreck, and Warshaw. Abstract:

We provide a comprehensive assessment of the influence of television advertising on United States election outcomes from 2000–2018. We expand on previous research by including presidential, Senate, House, gubernatorial, Attorney General, and state Treasurer elections and using both difference-in-differences and border-discontinuity research designs to help identify the causal effect of advertising. We find that televised broadcast campaign advertising matters up and down the ballot, but it has much larger effects in down-ballot elections than in presidential elections. Using survey and voter registration data from multiple election cycles, we also show that the primary mechanism for ad effects is persuasion, not the mobilization of partisans. Our results have implications for the study of campaigns and elections as well as voter decision making and information processing.

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Breaking: Supreme Court, with No Noted Dissents, Turns Down Major Petition on Whether Corporations Have a Constitutional Right to Make Contributions Directly to Candidates

Once again, the Supreme Court has turned down the chance to consider the constitutionality of laws limiting direct campaign contributions to candidates. The Court upheld such limits in Beaumont v. FEC but it has been under sustained attack since Citizens… Continue reading